For New Court, Abortion Case Takes Old Path

By LINDA GREENHOUSE

Published: December 1, 2005

Well before the argument in a New Hampshire abortion case was over, the question that had drawn the crowds to the Supreme Court on a crisp Wednesday morning had an answer. No, abortion law was not about to undergo a major change in the hands of the new Roberts court, at least not yet.

The justices appeared to be in broad agreement on two propositions: that laws regulating teenagers' access to abortion must make allowances for medical emergencies; and that the New Hampshire law, requiring notice to one parent and a 48-hour waiting period, failed to do so.

The only dispute was over how to fix the problem, and even as to that question, there was some evidence of a consensus in the making.

The hundreds of spectators in the courtroom, and the countless more who were able to listen, thanks to the court's unusually speedy release of the audiotape, were treated to an intense and lively session during which the justices appeared at times almost to be thinking out loud about how to proceed.

Justices across the ideological spectrum appeared inclined to send the case back to the federal appeals court that had declared the law unenforceable in all respects, and to instruct that court to render a narrower ruling. Such a ruling would permit the law to take effect except when a doctor had certified that an immediate abortion -- without either notifying a parent or seeking approval from a judge, an option known as a judicial bypass -- was necessary to preserve a girl's health.

Addressing Jennifer Dalven, a lawyer for the American Civil Liberties Union representing the abortion clinics that brought the successful challenge to the law, Justice Stephen G. Breyer tried out his solution.

''I guess it would satisfy you to say that this statute cannot be enforced in any circumstance in which a physician certifies in good faith that he believes an immediate abortion is necessary for the health of the mother,'' Justice Breyer said. As much musing as questioning, he continued:

''All you're looking to is the state of mind of the physician. Now, the problem that I think we'd see with that is you'd then be writing into the law the broadest possible definition of what that health exception means. So, I'm not sure the New Hampshire Legislature would have wanted to do it, and I'm not sure the other side would like to do it. But looking at it from your point of view, do you have any objection to it?''

Ms. Dalven replied, ''That would solve the constitutional problem here,'' but she also contended that the United States Court of Appeals for the First Circuit had taken the preferable course in blocking enforcement of the law in all possible applications.

''I think there is real cause for concern about rewriting this law for New Hampshire,'' she said. ''If this court said that that's the proper course, I believe that the federal judiciary will be faced with rewriting abortion law after abortion law after abortion law.''

Justices Ruth Bader Ginsburg and Sandra Day O'Connor also explored the prospect of sending the case back. ''Is there any objection by you to remanding this thing to let it be more narrowly focused?'' Justice O'Connor asked Ms. Dalven.

Musing aloud, Justice Ginsburg asked: ''Why wouldn't it be entirely adequate to protect what you're concerned about to say this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there's imminent danger to health? And then all those imminent danger to health situations would be left unregulated, the statute doesn't reach them, but nonemergency cases would continue to be governed by the statute. In other words, why wasn't that the appropriate judgment for the First Circuit to have entered in this case, to say the statute's fine for nonemergency cases, but for emergency cases there is effectively no law?''

Chief Justice John G. Roberts Jr. made it clear that he thought the appeals court's ruling had been too broad, but was less clear about how to remedy the problem. He appeared to be suggesting that the law, which the New Hampshire Legislature passed in 2003 but which has never taken effect, should be challenged in an entirely new lawsuit, one brought by doctors who could face criminal and civil liability for performing emergency abortions.

''What is wrong with a pre-enforcement challenge by physicians?'' the chief justice asked Ms. Dalven. ''Why should you be able to challenge the act as a whole if your objection is so narrowly focused?''

Later, he elaborated: ''Presumably the litigation would be very similar to what we've seen in this case, in which a doctor is saying well, you do need an immediate medical exception; others saying that the judicial bypass adequately addresses the concerns. But it would be focused on the provision that is causing you concern, rather than the statute as a whole.''

Attorney General Kelly A. Ayotte of New Hampshire, who brought the appeal of the lower court's ruling, asserted in her argument that under New Hampshire's general health law, a doctor performing an emergency abortion would have a legal defense in any event, based on the state's general law regarding medical practice. Ms. Ayotte said she was prepared to issue a formal opinion to that effect if the occasion arose.